In the development of Title IX law and regulation, the concept of informal resolution got a bad rap. This was due in part to the fact that informal resolution was often equated with mediation, and people assumed that mediation would require two parties to sit across a table together and mutually agree to a resolution. The argument against mediation often dismisses the possibility that a fair result can occur when a power differential exists between the parties due to their status (supervisor-employee) or due to an act of violence (i.e., sexual assault, dating violence).
Putting aside whether this is what mediation has to be (most trained mediators would say a face-to-face meeting is NOT required), the informal resolution process is a much broader concept, and I would argue is appropriate for Title IX matters in proper situations. It provides a chance to bring matters to a resolution more quickly, to explore options that the formal process doesn’t allow, and to creatively find ways to heal the parties beyond the imposition of sanctions.
The formal investigation process includes, at a minimum, interviewing parties and witnesses, reviewing documentary and digital evidence, and applying all of the evidence collected to the institution’s policies. The investigator often makes difficult decisions about credibility and evaluating two conflicting stories. The New Rule of Title IX imposes a number of opportunities for both parties to review and comment in each step of the process. Setting aside the question of whether this is the correct process, it is clear this process is time-consuming and exhausting for the parties involved.
An informal resolution can explore options outside of this process. For many students, they want harassing behavior to stop and often nothing more. My experience has shown that the older the students – graduate level, adult students at community colleges – the less they are interested in this formal college process. Informal resolution can frequently get the conclusion more quickly, serving the needs of both students and the Title IX administrators.
Options Beyond Discipline
When I describe the formal investigation process to parties, I focus on the fact that, at the end of the day, this process only determines if a policy violation took place and imposes discipline if one is found. It will not necessarily provide the results that a complainant seeks and will mostly likely not provide the resolution that many respondents seek (full exoneration).
If we focus on the formal process only, we often don’t get to the somewhat “softer” resolutions – like an apology or education to avoid similar behavior in the future. While this may not be sought by some parties, I have found in some instances, these types of resolutions are more satisfying in the long run.
Regardless of a finding in a formal investigation (policy violation/no policy violation), it is clear that a Title IX matter causes pain and hurt to the parties involved and normally to the community around those parties. The Title IX formal investigation process does a lot to ensure protection of these parties but does nothing to focus on healing any of these groups. And since a serious Title IX incident often involves public attention that may involve social media and inaccuracies, the best outcome would often incorporate the potential for the parties and the community to heal through listening circles and similar outlets.
Incorporating Restorative Justice concepts into your Title IX process could be a solution that makes sense for many school communities. To learn more about this, join our webinar this month.